Control Number: 51812 Item Number: 199 Addendum StartPage: 0 r. April 22,2021 2021 APR 23 AN 10: 07 Via Electronic Filini: Ms. Deven Reeves Filing Clerk Public Utility Commission of Texas Central Records 1701 N. Congress Avenue Austin, Texas 78701 Re : Project No . 51812 ; Issues Related to the State of Disaster for the February 2021 Winter Weather Event Dear Ms. Reeves: Consistent with Paragraph 6 in the attached, I am filing a copy of the Original Petition for Judicial Review, and Alternatively, Suit for Declaratory Judgment, and Alternatively, for Writ of Mandamus or Injunction, with Exhibits, that were filed in Travis County District Court on April 21,2021. Should you have any questions or concerns with regards to the enclosed, please do not hesitate to contact our office. Thank you for your time and attention to this matter. Both are sincerely appreciated. Very truly yours, -7 4 1) / t / ) By:~CV- K~ Michael Jfje¥(fel;/ Jewell & Associates, PLLC 8404 Lakewood Ridge Cove Austin, TX 78738-7674 (512) 423-4065 Attorney for TX Hereford Wind, LLC Miami Wind I, LLC ; Goldthwaite Wind Energy LLC; and Ector County Energy Center LLC Enclosures {00155437 DOC / } hi hi 6 CAUSE NO. RWE RENEWABLES AMERICAS § IN THE DISTRICT COURT LLC, TX HERE:FORD WIND, LLC, § MIAMI WIND I, LLC, § GOLDTHWAITE WIND ENERGY § LLC and ECTOR COUNTY § ENERGY CENTER LLC, § Plaintiffs/Appellants, § V. § § TRAVIS COUNTY, TEXAS ARTHUR D'ANDREA, Chair, and § Commissioners JAMES W . § McADAMS, and DOE, in their official § capacities as Commissioners of the § Public Utility Commission of Texas,1 § and § PUBLIC UTILITY COMMISSION § OF TEXAS, § Defendants. § JUDICIAL DISTRICT ORIGINAL PETITION FOR JUDICIAL REVIEW, AND ALTERNATIVELY, SUIT FOR DECLARATORY JUDGMENT, AND ALTERNATIVELY, FOR WRIT OF MANDAMUS OR INJUNCTION TO THE HONORA-BLE COURT: COME NOW, TX Hereford Wind, LLC; Miami Wind I, LLC; Goldthwaite Wind Energy LLC; Ector County Energy Center LLC; and RWE Renewables Americas LLC and its affiliates ("RWE") (collectively, "Plaintiffs/Appellants") and, pursuant to the Public Utility Regulatory Act, ' This petition for judicial review arises out of orders issued by the Public Utility Commission during the historic winter storm of February 2021. Subsequent to the storm, all three Commissioners then serving resigned. At the time of filing, Commissioner McAdams has been appointed and confirmed by the Texas Senate; Chairman D'Andrea's replacement has been appointed and confirmed, but not sworn in. When Chairman D'Andrea's replacement is confirmed, his replacement will be automatically substituted as a defendant. A third Commissioner has not been named. The final Commissioner is herein identified as "Commissioner Doe" until such time as the third Commissioner is appointed and confirmed. Cf. Tex. R. App. P. 7.2 (requiring substitution of a public official's successor when an official ceases to hold office before the proceeding is finally adjudicated). ORIGINAL PETITION FOR JUDICIAL REVIEW, AND ALTERNATIVELY, SUIT FOR DECLARATORY JUDGMENT, AND ALTERNATIVELY, FOR WRIT OF MANDAMUS OR INJUNCTION Page 1 of 41 Tex. Util. Code § 15.001 ("PURA"), Texas Administrative Procedure Act, Tex. Gov't Code §§ 2001.035, 2001.038, 2001.171, 2001.174, 2001.176 ("APA"), file this Original Petition for Judicial Review, and Alternatively, Suit for Declaratory Judgment, and Alternatively, for Writ of Mandamus or Injunction, asking that the "orders" of the Public Utility Commission of Texas ("PUC" or "Commission") dated February 15 and 16, 2021 (the "Orders") filed in Project Nos. 51617 and 51812,2 included hereto as Exhibit "A," Exhibit "B," Exhibit .c. '33 and Exhibit "D,5,4 be voided and reversed. Alternatively, Plainti ffs/Appellants seek a declaratory judgment pursuant to the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code §§ 37.001-011, that Commissioners D ' Andrea , McAdams , and Doe acted ultra vires and outside the scope of their legal authority in promulgating the Orders and/or allowing the Electric Reliability Council of Texas ("ERCOT") to exceed the Orders and refusing to correct certain pricing. Further in the alternative, Plaintiff/Appellants seek a writ of mandamus or injunction directing Defendant PUC and PUC Commissioners, D'Andrea, McAdams, and Doe, to withdraw the voidable Orders and/or to correct pricing.5 In support thereof, Plaintiffs/Appellants respectfully show the Court the following: 1 Oversight of the Electric Reliability Council of Texas , Project No . 51617 , Order Directing ERCOT to Take Action and Granting Exception to Commission Rules (Feb. 15, 2021); Project No. 51617, Second Order Directing ERCOT to Take Action and Granting Exception to Commission Rules ( Feb . 16 , 2021 ); Issues Related to the State of Disaster for the February 2021 Winter Weather Event , Project No . 51812 , Order Directing ERCOT to Take Action and Granting Exception to Commission Rules ( Mar . 1 , 2021 ); Issues Related to the State of Disaster for the February 2021 Winter Weather Event, Project No . 51812 , Memorandum re : Corrected Commission Order Directing Action by ERCOT (Mar. 22, 2021). 3 Exhibit "C" includes copies of the Orders and Commission Counsel's memorandum dated February 17, 2021, moving copies of the Orders from Project No. 51617 to Project No. 51812. 4 Exhibit "D" includes copies of the Orders and Commission Counsel's memorandum dated March 22,2021, stating that "corrected" versions ofthe Orders were attached to the memorandum. 5 On March 2, 2021, Luminant Energy Company LLC filed an appeal of the Orders in the Court of Appeals for the Third Court of Appeals District of Texas- Austin pursuant to PURA §§ 39 . 001 ( e ) and ( f). See Luminant Energy Company LLC v Public Utility Commission of Texas , No . 03 - 21 - 00098 - CV ( Tex . App .- Austin , pending ). Sections 39.001(e) and (f) allow for judicial review of the validity of "competition rules adopted by the commission" in the Third Court of Appeals . See generally PURA §§ 39 . 001 ( e ) and ( f ). In its Notice Regarding Filing of Record in the ORIGINAL PETITION FOR JUDICIAL REVIEW, AND ALTERNATIVELY, SUIT FOR DECLARATORY JUDGMENT, AND ALTERNATIVELY, FOR WRIT OF MANDAMUS OR INJUNCTION Page 2 of 41 I. PARTIES 1. Plaintiff/Appellant RWE is a foreign limited liability company organized and existing under the laws of the State of Delaware with its principal place of business located at 353 N. Clark Street, 30th Floor, Chicago, Illinois 60654. RWE is authorized, and registered, to do business in the State of Texas and is a market participant impacted by the Orders appealed herein. RWE companies own and operate twenty-one renewable generation projects throughout Texas, a combination of wind and solar, and associated energy storage projects all within ERCOT with additional projects currently under construction within ERCOT. 2. Plaintiff/Appellant TX Hereford Wind, LLC is a foreign limited liability company organized and existing under the laws of the State of Delaware. TX Hereford Wind, LLC's principal place of business is located at 4501 FM 1259 Hereford, Texas 79045. It is authorized, and registered, to do business in the State of Texas and is a market participant impacted by the Order appealed herein. It owns and operates a wind generation resource within ERCOT. 3. Plaintiffs/Appellants Goldthwaite Wind Energy LLC and Ector County Energy Center LLC are foreign liability limited companies organized and existing under the laws of the State ofDelaware with their principal place ofbusiness located at 1 S. Wacker Dr. Chicago, Illinois 60606. Plaintiff/Appellant Miami Wind I, LLC is a domestic limited liability company organized and existing under the laws of the State of Texas with its principal place of business located at 1 S. Wacker Drive, Chicago, Illinois 60606. These companies are authorized, and registered, to do Luminant case , the Commission has taken the position that " the Court [ of Appeals ] lacks jurisdiction , because th [ e ] Court[I [of Appeals]' power to hear a direct appeal from a PUC decision is limited to '[j]udicial review ofthe validity of competition rules . "' See the Commission ' s Notice Regarding Filing of Records , Luminant , No . 03 - 21 - 00098 - CV at p. l and p. 1 n. 1 (citing PURA, Tex. Util. Code §§ 39.001(e) and (f) (emphasis in original)). To the extent that this Court is the proper forum for review, this case and Plaintiffs/Appellants' claims should proceed here. ORIGINAL PETITION FOR JUDICIAL REVIEW, AND ALTERNATIVELY, SUIT FOR DECLARATORY JUDGMENT, AND ALTERNATIVELY, FOR WRIT OF MANDAMUS OR INJUNCTION Page 3 of 41 business in the State of Texas and are market participants impacted by the Orders appealed herein. They own and operate a diverse mix of energy resources within ERCOT. 4. Defendant/Appellee PUC is an administrative agency of the State ofTexas charged with the responsibility for the regulation "relating to the reliability of the regional electrical network and accounting for the production and delivery of electricity among generators and all other market participants"pursuant to Tex. Util. Code § 39.151(d). The PUC maybe served with process pursuant to Rule 106(a)(1) of the Texas Rules of Civil Procedure and 16 Texas Administrative Code § 22.22 by personally serving, in his official capacity, Thomas Gleeson, Executive Director, 1701 North Congress Avenue, 7th Floor, Austin, Texas 78701. Plaintiffs/Appellants request that the Clerk of the Court issue service of process to the PUC pursuant to Texas Rule of Civil Procedure 99. 5. Defendants Chair Arthur D'Andrea ("D'Andrea"), Commissioner James W. McAdams ("McAdams"), and Commissioner Doe ("Doe") (together, the "Commissioners"), sued here in their official capacities, are Commissioners of the PUC. D'Andrea, McAdams, and Doe may also be served with process pursuant to Rule 106(a)(1) of the Texas Rules of Civil Procedure and 16 Texas Administrative Code § 22.22 by personally serving, in his official capacity, Thomas Gleeson, Executive Director, 1701 North Congress Avenue, 7th Floor, Austin, Texas 78701. Plaintiffs/Appellants request that the Clerk of the Court issue service of process to the PUC pursuant to Texas Rule of Civil Procedure 99.